Vaughn v. Firehouse Grill, L.L.C.

2017 Ohio 6967

• Court: Ohio Court of Appeals
• Decided: July 26, 2017
• Docket: C-160502
• Status: Published

Opinion

[Cite as Vaughn v. Firehouse Grill, L.L.C., 2017-Ohio-6967.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

DANA VAUGHN, : APPEAL NO. C-160502 TRIAL NO. A-1406378 Plaintiff-Appellant, :

vs. : O P I N I O N.

FIREHOUSE GRILL, LLC., :

and :

KLEKAMP & COMPANY, :

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 26, 2017

Casper & Casper LLC and William P. Allen for Plaintiff-Appellant,

Williams & Petro Co., LLC, Richard A. Williams and Susan S.R. Petro, for Defendant- Appellee Firehouse Grill, LLC.,

Matthew R. Skinner for Defendant-Appellee Klekamp & Company. OHIO FIRST DISTRICT COURT OF APPEALS

CUNNINGHAM, Presiding Judge.

{¶1} Plaintiff-appellant Dana Vaughn appeals from the trial court’s entry of summary

judgment in favor of defendants-appellees the Firehouse Grill, LLC., (“Firehouse Grill”) and

Klekamp & Company (“Klekamp”) on her negligence claims stemming from her trip and fall on a

handicap ramp. We affirm the grant of summary judgment to the defendants-appellees.

{¶2} On February 22, 2013, around lunchtime, Vaughn, a passenger in a car

driven by her husband, arrived at the Firehouse Grill restaurant. Vaughn’s husband parked

their car in a handicapped parking space next to a handicap ramp. Vaughn exited from the

passenger side of the vehicle and walked up the handicap ramp, onto an adjoining sidewalk,

and into the restaurant. After finishing lunch, Vaughn exited from the restaurant, walked

along the sidewalk, and then down the handicap ramp to her car.

{¶3} Vaughn then stood by her car for some time talking with her family. After

saying goodbye, Vaughn decided to reenter the restaurant to use the restroom. She placed

her purse in the trunk of her car. She then walked back up the handicap ramp and into the

restaurant. As she was walking back down the ramp, she encountered another person

walking up the ramp, so she moved to the right side of the ramp. She stepped off the right

side of the ramp and fell into her car, injuring her head, her left rotator cuff, her left elbow,

and both knees.

{¶4} Vaughn filed a negligence action against Firehouse Grill, as the property

owner, and against Klekamp, the company that allegedly had painted the handicap ramp.

Vaughn alleged that she tripped and fell down the ramp because the ramp’s paint scheme

created a latent, hidden defect. She alleged that the yellow color of the ramp and the

abutting parking line hid the change in elevation between the ramp and the parking lot,

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making it appear as if the entire painted area was a part of the ramp instead of the parking

lot.

{¶5} Firehouse Grill moved for summary judgment based on a number of

theories, including that it owed no duty to Vaughn because the ramp and its paint scheme

were open and obvious. Klekamp also moved for summary judgment on multiple grounds,

including that it owed no duty to Vaughn because it had subcontracted the painting of the

ramp to another company and had not directed the means or manner of that work.

{¶6} The trial court granted summary judgment to defendants-appellees on the

basis that Vaughn had successfully traversed the ramp three times prior to her fall and thus,

the once-traversed doctrine, as articulated in Raflo v. Losantiville Country Club, 34 Ohio

St.2d 1, 295 N.E.2d 202 (1973), precluded any duty on the part of the defendants-appellees

to protect her from any latent defects with respect to the ramp. In two assignments of error,

Vaughn challenges the grant of summary judgment to defendants-appellees.

{¶7} We review the trial court’s grant of summary judgment de novo, using the

same standard the trial court applied. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d

1243 (2000). Summary judgment in favor of Firehouse Grill and Klekamp was appropriate

under Civ.R. 56(C) if they demonstrated that: (1) there was no genuine issue of material

fact; (2) they were entitled to judgment as a matter of law; and (3) after considering the

evidence in the light most favorable to Vaughn, reasonable minds could only reach a

conclusion adverse to her. See Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-

370, 696 N.E.2d 204 (1998).

{¶8} In her first assignment of error, Vaughn alleges that the trial court erred in

granting summary judgment to the Firehouse Grill when genuine issues of material fact

exist as to the latent nature of the paint scheme of the ramp.

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{¶9} It is undisputed that Vaughn was a business invitee. Thus, the Firehouse

Grill, as the owner of the premises, had a duty of ordinary care to maintain the premises in a

reasonably safe condition and to warn Vaughn of latent or concealed dangers if it knew or

had reason to know of the hidden dangers. Armstrong v. Best Buy, 99 Ohio St.3d 79, 2003-

Ohio-2573, 788 N.E.2d 1088, ¶ 5. Ohio courts have held that the existence and color of an

alleged hazard must be treated together, whether the absence of a color contrast is treated

as part of the open-and-obvious analysis or as a claim of an attendant circumstance. See

Esterman v. Speedway LLC, 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, ¶ 14-15;

Shipman v. Papa John’s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 26 (holding that

the uniformity of color between the alleged hazard and the surrounding area “does not

prevent the condition from being open and obvious[.]”).

{¶10} Here, Vaughn does not dispute the following facts: she knew where the ramp

was; she had navigated the ramp successfully three times immediately prior to her fall; she

had an unobstructed view of the ramp at the time of her fall; and no attendant

circumstances distracted her from seeing where she was going. Rather, she argues that her

deposition testimony that she was unable to see the change in elevation between the ramp

and the parking lot, when coupled with the deposition testimony from defendants-appellees’

representatives, the photographs of the ramp, and the evidence of code violations given by

architect David Eaton, creates a genuine issue of material fact as to the latent condition of

the paint scheme of the ramp. We disagree.

{¶11} Vaughn’s testimony that the color of the ramp and the abutting parking line

hid the change in elevation between the ramp and the parking lot, making it appear as if the

entire painted area was a part of the ramp does not, by itself, create a genuine issue of

material fact. See Esterman, 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, at ¶ 7

4 OHIO FIRST DISTRICT COURT OF APPEALS

(noting that case law utilizes an objective, not subjective standard when determining

whether a danger is open and obvious); Goode v. Mt. Gillion Baptist Church, 8th Dist.

Cuyahoga No. 87876, 2006-Ohio-6936, ¶ 25 (holding that the fact that the plaintiff was

unaware of the hazard was not dispositive of whether it was open and obvious).

{¶12} Vaughn next argues that deposition testimony from the defendants-

appellees’ representatives is evidence of a fact issue as to whether the ramp’s paint scheme

created a latent condition. Both representatives were shown photographs of the ramp.

Robert Davis, a partner in the Firehouse Grill, was shown two photographs depicting the

ramp from the bottom in the parking lot looking up. Davis’s testimony that, as

photographed, the solid yellow line “looks to be” covering only the raised portions of the

ramp does not create a genuine issue of material fact on the observability of the ramp’s

condition in person, in three dimensions, in color, and from the angle Vaughn actually had

at the time of her fall.

{¶13} Similarly, testimony from Scott Tackett, Klekamp’s president, regarding the

photographs does not create a genuine issue of material fact on the alleged condition of the

ramp. Tackett testified that he could not tell that one of the photographs depicted the ramp.

He could not tell in three additional photographs whether any of the flat area of the parking

lot was painted solid yellow, because the pictures were “washed out,” and the photographs

failed to show differences in the paint schemes from left to right.

{¶14} Our own review of the photographs reveals the want of concealment of the

paint scheme. The yellow line painted on the parking lot surface toward the left side of the

picture extends from the curb where the ramp attaches to the sidewalk at the top and

extends outward into the parking lot beyond the end of the ramp. Where the parking line

stops at the curb, the sloped surface of the ramp is markedly higher than the parking lot

5 OHIO FIRST DISTRICT COURT OF APPEALS

surface, and at its highest point meets the elevation of the sidewalk, marking a clear

distinction between the ramp surface and the parking lot surface.

{¶15} Finally, Vaughn asserts that Eaton’s affidavit, in which he opined that the

ramp violated several provisions of the 2011 Ohio Building Code, creates a genuine issue of

material fact as to the latent condition of the handicap ramp. But the Ohio Supreme Court

has affirmatively stated that violations of building code provisions do not prevent the

assertion of the open-and-obvious defense. See Lang v. Holly Hill Motel, Inc., 122 Ohio

St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, syllabus. We have reviewed Eaton’s affidavit

and we cannot conclude it precludes summary judgment on the basis that the condition of

the ramp was open and obvious. Because reasonable minds could only conclude that the

condition of the ramp was open and obvious, we overrule Vaughn’s first assignment of

error.

{¶16} In her second assignment of error, Vaughn argues that the trial court erred

by granting summary judgment to Klekamp, as an independent contractor, on the basis of

the “once traversed doctrine” because the doctrine “seems” to be based upon the open-and-

obvious doctrine, which does not apply to independent contractors.

{¶17} Vaughn alleged that Klekamp had negligently designed, constructed, altered,

and/or painted the handicap ramp prior to her fall. Klekamp presented an affidavit from

Tackett that Klekamp had contracted with the Firehouse Grill to restripe the parking lot,

which included repainting the handicap ramp just as it had been painted previously.

Klekamp had then subcontracted that work to Crew One, which actually painted the ramp.

{¶18} In her memorandum opposing summary judgment, Vaughn had argued that

Klekamp had directed Crew One as to how to paint the ramp, and therefore, was liable for

her injuries pursuant to Simko v. Lee Homes, 8th Dist. Cuyahoga No. 68372, 1995 WL

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546922 (Sept. 14, 1995). Vaughn, however, presented no evidence that Klekamp had

directed the means or the manner in which Crew One had painted the ramp. See Simko at

*2, citing Bond v. Howard Corp., 72 Ohio St.3d 332, 650 N.E.2d 416 (1995), syllabus.

Klekamp presented uncontroverted evidence to the contrary─that it had not directed Crew

One in its performance of that task. As a result, reasonable minds could only conclude that

Klekamp owed no duty of care to Vaughn as a result of Crew One’s work on the ramp. Thus,

Klekamp was entitled to judgment as a matter of law on Vaughn’s negligence claim.

{¶19} We, therefore, overrule Vaughn’s second assignment of error and affirm the

judgment of the trial court.

Judgment affirmed. MYERS, J., concurs. ZAYAS, J., concurs in part and dissents in part.

ZAYAS, J., concurring in part and dissenting in part.

{¶20} I agree that summary judgment was properly granted to Klekamp, but I

cannot agree that Firehouse Grill was entitled to summary judgment.

{¶21} I note that the ramp at issue in this case is not a typical rectangular handicap

access ramp. Rather, it is wider at the top where it meets the curb, and tapers as it extends

downwards to the level of the parking lot. The sides of the ramp are not sheer drops, but

rather slopes. Due to the trapezoidal1 shape of the walkway top, the sloping edges that lead

to the flat parking lot pavement do not slope at a consistent angle, but rather, a different

angle depending on where you encounter the sloping edge. The entire ramp, including the

slopes, is painted yellow. Additionally, to the right of the ramp (looking from the top of the

1A “geometric figure with four sides but with only two sides parallel.” Merriam-Webster, Trapezoid, https://www.merriam-webster.com/dictionary/trapezoid (accessed July 19, 2017).

7 OHIO FIRST DISTRICT COURT OF APPEALS

ramp to the bottom), a portion of the parking lot pavement abutting the entire sloped edge

is also painted yellow.

{¶22} On the right side (looking from the top of the ramp to the bottom) the yellow

of the walkway top of the ramp bleeds into the slope, and then bleeds into the yellow on the

flat parking lot adjacent to the right of the ramp. Vaughn’s argument is that this paint

scheme made the ramp seem wider than it was, which caused her to step from the ramp

onto the slope, resulting in her fall.

{¶23} The majority states that there is a “clear distinction between the ramp

surface and the parking lot surface,” making any defect in the ramp’s design “open and

obvious.” Upon review of the record, including the photographs, I do not believe that

“reasonable minds could only conclude that the condition of the ramp was open and

obvious.” While I agree that Vaughn’s own testimony of her subjective belief is not

dispositive, and I further agree that Tackett’s and Eaton’s testimony is not dispositive, I

believe that Davis’s testimony supports the conclusion that a reasonable person may not

have been able to discover the danger the ramp presented and protect against it.

{¶24} Davis testified that he had seen and was familiar with the area around the

handicap access ramp. He testified that, other than refreshing the paint, the ramp and the

paint scheme had not changed since the restaurant had opened. He testified that he was

unaware of the paint scheme prior to the litigation, but did not notice anything about the

ramp that seemed inconsistent. When asked if he examined the ramp after receiving notice

of the claim, he answered, “I may have looked at it, but outside of that, no.” After viewing

the photographs, he testified that the ramp appeared to be rectangular, even though it is

not. When he was also provided an opportunity to testify from his own recollection, he

testified that the ramp was a rectangle.

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{¶25} Given an opportunity to independently describe the ramp from his own

recollection, he could not do so, nor could he accurately describe the ramp after viewing a

photograph. This testimony supports the proposition that one’s familiarity or prior

experience with the ramp does not translate into knowledge of its potential defects. Mindful

of our duty to view the facts in the light most favorable to the nonmoving party, see

Brandner v. Innovex, Inc., 2012-Ohio-462, 970 N.E.2d 1067, ¶ 13, 21 (1st Dist.), and Davis’s

and Vaughn’s testimony, coupled with the photographic evidence, I do not believe that the

evidence conclusively established that the ramp was an open and obvious hazard that “a

customer exercising ordinary care under [the] circumstances would have seen and been able

to guard him or herself against * * *.” See Kidder v. Kroger Co., 2d Dist. Montgomery No.

20405, 2004-Ohio-4261, ¶ 11, quoting Youngerman v. Meijer, Inc., 2d Dist. Montgomery

No. 15732, 1996 WL 531628, *9 (Sept. 20, 1996).

{¶26} I therefore respectfully dissent from the majority’s decision to affirm the

grant of summary judgment to Firehouse Grill.

Please note: The court has recorded its own entry this date.